August 8, 2019- State of New Mexico v. Quintin C., No. A-1-CA-37230

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Court of Appeals of New Mexico
Filed 8/8/2019 11:15 AM

Corrections to this opinion not affecting the outcome, at the Court's discretion, can occur up to the time of publication with
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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO Mark 4

Opinion Number:

Filing Date: AUGUST 8, 2019

No. A-1-CA-37230

STATE OF NEW MEXICO,
Plaintiff-Appellee,

v.

QUINTIN C.,
Child-Appellant.

APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY
Daniel A. Bryant, District Judge

Hector H. Balderas, Attorney General
Benjamin L. Lammons, Assistant Attorney General
Santa Fe, NM

for Appellee

Bennett J. Baur, Chief Public Defender
Nina Lalevic, Assistant Appellate Defender
Santa Fe, NM

for Appellant

1 	OPINION
2 DUFFY, Judge.
3 	{1} 	Child appeals his conviction for violating NMSA 1978, Section 30-20-13(D)
4 (1981), which criminalizes willful interference with the educational process by
5 threatening to commit any act that would disrupt the lawful mission, processes,
6 procedures or functions of the school, arguing that the evidence is insufficient to
7 sustain his conviction and that the statute, as applied to his speech in this case,
8 violated his First Amendment rights. Because the record demonstrates that the mens
9 rea element of this offense was evaluated under an incorrect general intent standard,
10 we reverse and remand for a new trial.
11 	BACKGROUND
12 	{2} 	Child, age fourteen, and J.E., age eleven, were students at Capitan Middle
13 	School and High School. The school followed a four-day school week, and during
14 the school bus ride home for the weekend on a Thursday afternoon, J.E. sat across
15 the aisle from Child. J.E. saw that Child had a camera and asked Child to take his
16 picture; Child did so. J.E. asked Child why he brought his camera to school, and
17 Child responded, "I'm making a kill list."
18 	{3} 	J.E. was bothered by the statement and moved to a different seat. The next
19 morning, he told his mother what had happened, and when school reconvened the
20 following Monday morning, J.E. arrived at 7: 15 a.m. and told the school principal,

1 Patti Nesbitt, what Child had said on the bus. Ms. Nesbitt informed the school
2 counselor, Theresa Kennedy, and the two of them spoke with Child that morning.
3 Ms. Nesbitt informed Child that school officials had received a report about his "hit
4 list"; Child corrected her and said that it was a "kill list."
5 {4} 	Child did not bring a weapon to school on Monday and when Ms. Nesbitt
6 searched his camera, laptop, and Kindle, she discovered only four photos, all people
7 Child stated were his friends. The photos did not include a photo of J.E. Ms. Nesbitt
8 contacted Defendant's grandmother and Ms. Kennedy called the police. Ms. Nesbitt
9 further testified that the police investigation took about four hours, which interfered
10 with her normal duties.
11 	{5} 	On January 31, 2018, the State filed a petition alleging that Child was a
12 delinquent child and asserted two counts against him-Count 	1 for attempt to
13 	commit aggravated assault with intent to commit a violent felony, contrary to NMSA
14 	1978, Section 30-3-3 (1977) ("Assault with intent to commit a violent felony
15 	consists 	of any person assaulting another with intent to kill 	or commit any
16 murder[.]"), and Count 2 for violation of the school interference statute, contrary to
17 	Section 30-20-13(D). One day before trial, the State dismissed Count 1, concluding
18 that it did not have sufficient evidence to prove that charge, and the parties proceeded
19 with a bench trial on Count 2. The State called four witnesses: J.E., Ms. Nesbitt, Ms.
2

1 Kennedy, and the police chief who participated in the investigation on the date of
2 the incident. The defense called no witnesses. The district court found that Child had
3 committed the delinquent act of violating Section 30-20-13 (D) and sentenced him
4 to two years' probation.
5 DISCUSSION
6 	{6} 	Although Defendant challenges the sufficiency of the evidence to support his
7 conviction, his argument fundamentally challenges whether the evidence in this case
8 constitutes the charged offense. See State v. Barragan, 2001-NMCA-086, 124, 131
9 N.M. 281, 34 P.3d 1157 ("Although framed as a challenge to the sufficiency of
10 evidence, [the d]efendant' s argument requires us to engage in statutory interpretation
11 	to determine whether the facts of this case, when viewed in the light most favorable
12 to the verdict, are legally sufficient to sustain a conviction[.]"), overruled on other
13 grounds by State v. Tollardo, 2012-NMSC-008, 137 n.6, 275 P.3d 110. The parties
14 disagree on the 	standard required for 	conviction under 	Section 30-20-13(D),
15 	including what intent is required and whether the statute itself is unconstitutional as
16 applied in this case because it criminally punishes speech. Thus, in order to evaluate
17 the sufficiency of the evidence to support Child's conviction, we must first evaluate
18 the statutory standard required to sustain a conviction. "Interpreting the relevant
19 statute[] is a question of law, which we review de novo." State v. Herbstman, 1999-
3

1 NMCA-014, 1 16, 126 N.M. 683, 974 P.2d 177. "After reviewing the statutory
2 standard, we apply a substantial evidence standard to review the sufficiency of the
3 evidence at trial." State v. Chavez, 2009-NMSC-035, 1 11, 146 N.M. 434, 211 P.3d
4 891.
5 I. 	Section 30-20-13(D)
6 	{7} 	The Legislature enacted Section 30-20-13 in 1970, a time when states across
7 the country were adopting similar statutory provisions in response to organized
8 disturbances on college campuses. See In re Jason W., 83 7 A.2d 168, 172- 73 (Md.
9 2003) ("The broadening and focused application of trespass, disorderly conduct, or
10 	school disturbance laws was then a national phenomenon."); id. at 173 ("The focus
11 	in 1970 ... was on riots and organized demonstrations and disturbances that actually
12 impeded the 	schools 	from 	carrying 	out their 	administrative 	and 	educational
13 	functions."); see also Sheldon R. Shapiro, Annotation, Participation of Student in
14 Demonstration on or Near Campus as Warranting Imposition of Criminal Liability
15 for Breach of Peace, Disorderly Conduct, Trespass, Unlawful Assembly, or Similar
16 	Offense, 32 A.L.R. 3d 551 (1970). The statute originally focused on interference
17 occurring in or at public buildings. See State v. Silva, 1974-NMCA-072, 112-3, 86
18 N.M. 543, 525 P.2d 903 (addressing the constitutionality of a prior version of
19 	Section 30-20-13(C) following a sit-in at the Eastern New Mexico University
4

1 president's office, where police arrested the defendant after the university president
2 repeatedly requested that those present leave). But in 1981, the Legislature added
3 Subsection (D), which provides:
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No person shall willfully interfere with the educational process of any
public 	or private school by committing, threatening to commit or
inciting others to commit any act which would disrupt, impair, interfere
with or obstruct the lawful mission, processes, procedures or functions
of a public or private school.
9 Section 30-20-13(0). A violation of Subsection (D) is a petty misdemeanor. Section
10 30-20-13(F).
11 	{8} 	In its nearly forty-year history, Subsection (D) has not been construed by an
12 appellate 	court 	in New Mexico. Federal 	courts, however, 	have 	evaluated the
13 	provision in several recent cases when considering whether arresting officers had
14 probable cause to arrest children for actions undertaken at school that interfered with
15 	school or educational functions. See, e.g., Scott v. City ofAlbuquerque, 711 F. App 'x
16 871, 873-74 (10th Cir. 2017) (discussing a middle school student's underlying arrest
17 after leaving class early); A.M v. Holmes, 830 F.3d 1123, 1148 (10th Cir. 2016)
18 (discussing a middle school student's underlying arrest for "repeatedly fake-burping,
19 laughing, and (later) leaning into the classroom"); Castaneda v. City ofAlbuquerque,
20 276 F. Supp. 3d 1152, 1158 (D.N.M. 2016) (discussing a student's underlying arrest,
21 	which occurred after student had forgotten about his in-school suspension and
5

1 reported to his regularly scheduled class, after which a detective allegedly came to
2 student's classroom, searched his backpack and pockets, handcuffed student with
3 zip ties, and transported him to the juvenile detention center); G.M ex rel. B.M v.
4 Casalduc, 982 F. Supp. 2d 1235, 1240 (D.N.M. 2013) (discussing a middle school
5 student's underlying arrest after refusing multiple requests to stop texting in class).
6 	{9} 	Our evaluation and interpretation of our school interference statute presents a
7 question of law that we review de novo. See Chavez, 2009-NMSC-035, ,-r 1O; see
8 also State v. Granillo, 2016-NMCA-094, ,-r 13, 384 P.3d 1121 (stating that defining
9 the mens rea applicable to the crime is a question of law that we review de novo ).
10 We are guided in our analysis by the longstanding, fundamental principle that "[a]
11 	criminal statute must be strictly construed and may not be applied beyond its
12 intended scope for it is a fundamental rule of constitutional law that crimes must be
13 	defined with appropriate definiteness." State v. Stephenson, 2017-NMSC-002, ,-r 12,
14 389 P.3d 272 (alteration, internal quotation marks, and citation omitted). "Therefore,
15 	we will not read a criminal statute to apply to particular conduct unless the legislative
16 proscription is plain." Id. (internal quotation marks and citation omitted).
17 A. 	Mens Rea
18 	{to} 	We begin our statutory analysis by examining what mental state is required
19 for 	conviction. 	Section 	30-20-13(D) 	requrres 	proof that 	a 	person 	"willfully
6

1 interfere[ d]" with the educational process by committing one of three acts set forth
2 in the statute: (1) "committing," (2) "threatening to commit," or (3) "inciting others
3 to commit any act which would disrupt, impair, interfere with or obstruct the lawful
4 mission, processes, procedures or functions of a public or private school." Defendant
5 argues that the statute, by inclusion of the word "willfully," requires proof that he
6 intended that his statement would create a disruption at school. The State argues that
7 only general intent is necessary-that Defendant was aware of what he was doing
8 when he made the threat and that there was no just cause or lawful excuse for making
9 it. See 21 Am. Jur. 2d Criminal Law § 113 (2019) (footnote omitted) ("To prove
10 general intent, the state is not obligated to prove an intent to violate a particular
11 	statute but rather the intent to do the criminal act that violated the statute; in other
12 words, all that is required is proof that the person acted intentionally in the sense that
13 	he was aware of what he was doing."); see also State v. Brown, 1996-NMSC-073,
14 ,r 22, 122 N.M. 724, 931 P .2d 69 ("A general intent crime ... requires only a
15 	conscious wrongdoing, or the purposeful doing of an act that the law declares to be
16 a crime." (internal quotation marks and citation omitted)).
17 	{11} 	In Section 30-20-13(D), the Legislature declared that a person who "willfully"
18 interferes with the educational process is subject to criminal punishment. "Willfully"
19 connotes an element of mens rea, but the Legislature's use of the word "willfully"
7

1 in the statute is not dispositive of either specific or general intent-it has been used
2 irt both contexts within criminal statutes. Compare State v. Elliott, 2001-NMCA-
3 108, 112, 131 N.M. 390, 37 P.3d 107 (holding that NMSA 1978, Section 31-3-9
4 (1999), which penalizes the "willful failure to appear," is not a specific intent statute
5 because "[t]he crime of failure to appear does not require any intent to do a further
6 action or achieve a further consequence"), with Holguin v. Sally Beauty Supply Inc.,
7 2011-NMCA-100, 1118-19, 29, 150 N.M. 636, 264 P.3d 732 (evaluating statutory
8 provision allowing a merchant to detain a customer who has willfully concealed
9 merchandise and holding that the term "willfully" requires that the customer do more
10 than merely put merchandise out of sight, it also requires a specific intent to convert
11 	merchandise without paying for it). Moreover, "willfully" does not enjoy a universal
12 	definition in New Mexico and has not otherwise been defined by statute or uniform
13 jury instruction. 1 Nevertheless, "willfully" is regularly equated with the concept of
1State v. Billington, 2009-NMCA-014, 1 13, 145 N.M. 526, 201 P.3d 857
(" 'Willfully' denotes the doing of an act without just cause or lawful excuse."
(quoting State v. Masters, 1982-NMCA-166, 18, 99 N.M. 58,653 P.2d 889)); State
v. Elliott, 2001-NMCA-108, 1 63, 131 N.M. 390, 37 P.3d 107 (same); State v.
Rosaire, 	1996-NMCA-115, 1 16, 	123 N.M. 250, 939 P.2d 597 ("We interpret
'willfully,' as used in [NMSA 1978,] Section 33-2-46 [(1980)], to mean a conscious,
purposeful 	failure 	to 	return 	within 	the 	time 	fixed 	as 	distinguished 	from 	an
involuntary failure to return."), ajf'd, 1997-NMSC-034, 1 15, 123 N.M. 701, 945
P.2d 66; Statev. Elmquist, 1992-NMCA-119, 13, 114 N.M. 551,844 P.2d 13l·("The
term 'willful' has been defined as requiring proof that the person acted intentionally
in the sense that he was aware of what he was doing."); State v. Sheets, 1980-NMCA-
8

1 intentional conduct. See, e.g., Anderson v. Territory, 1887-NMSC-019, 13, 4 N.M.
2 213, 13 P. 21 (" 'Willfully' means that the act charged was intentionally done, and
3 was not the result of accident or misfortune." (internal quotation marks and citation
4 omitted)); Willful, Black's Law Dictionary (11th ed. 2019) (defining "willful" as
5 "[v]oluntary 	and 	intentional, 	but 	not 	necessarily 	malicious"); 	id. 	(defining
6 "willfulness" as "[t]he quality, state, or condition of acting purposely or by design;
7 deliberateness; intention").
8 {12} 	Applying 	this 	meaning, 	Section 	30-20-13(D) 	punishes 	"intentional
9 interference" with the educational process, thus indicating that a violation of the
10 school interference statute occurs when interference is the intended result, 	as
11 	opposed to an inadvertent or unintentional consequence. The Tenth Circuit Court of
12 Appeals recently construed the intent requirement in Section 30-20-13(D) similarly,
13 	stating that the "New Mexico [L]egislature sought to bar conduct that was designed
14 to 'interfere with the educational process,' rather than conduct that merely happened
15 to have that effect." Scott, 711 F. App'x at 877; id. at 876 ("The word 'willfully'
16 	suggests that a violation occurs only when a person acts with the conscious objective
17 of' interfering with the educational process.' " (alteration omitted)). "In other words,
041, 148, 94 N.M. 356,610 P.2d 760 ("To meet the willfulness requirement, all that
is required is proof that the person acted intentionally in the sense that he was.aware
of what he was doing.").
9

1 it is not enough that a person simply commits an act that disrupts the functions of a
2 school; to violate [S]ection 30-20-13(D), that person must act with the conscious
3 purpose 	of interfering with the 	educational process." 	Id. 	at 	876 	(alterations,
4 omission, internal quotation marks, and citation omitted)). We agree with this
5 reading. So construed, Section 30-20-13(D) refers to a defendant's intent to "do
6 some further act or achieve some additional consequence"-interference with the
7 educational process-and therefore, Section 30-20-13(D) is a specific intent crime.
8 State v. Bender, 1978-NMSC-044, , 7, 91 N.M. 670, 579 P.2d 796 ("When the
9 definition refers to [the] defendant's intent to do some further act or achieve some
10 additional consequence, the crime is deemed to be one of specific intent." (internal
11 	quotation marks and citation omitted)).
12 B. 	Actus Reus
13 	{13} 	The actus reus of the offense in this case is "threatening to commit any act
14 which would disrupt, impair, interfere with or obstruct the lawful mission, processes,
15 procedures or functions of a public or private school." Section 30-20-13(D). Child
16 argues that when 	Section 30-20-13(D) 	is used to 	punish threats, 	the 	statute
I7 unconstitutionally 	regulates 	speech. 	The 	State 	responds 	that 	Child's 	words
18 	constituted a "true threat" and are not constitutionally protected speech.
10

1 {14} 	While "[t]he First Amendment to the United States Constitution prohibits the
2 government from enacting laws abridging the freedom of speech[,] ... neither the
3 United States nor the New Mexico Constitution2 provides an absolute right to free
4 speech." Best v. Marino, 2017-NMCA-073, ~ 23, 404 P.3d 450 (stating that certain
5 categories of speech are not protected by the First Amendment, including "advocacy
6 intended, and likely, to incite imminent lawless action; obscenity; defamation;
7 speech integral to criminal conduct; so-called 'fighting words'; child pornography;
8 fraud; true threats; and speech presenting some grave and imminent threat the
9 government has the power to prevent" (internal quotation marks and citations
10 omitted)), cert. denied, 2019-NMCERT-_ (No. S-1-SC-36586, Aug. 31, 2017).
11 	True threats enjoy no constitutional protection, and to the extent Section 30-20-
12 	13(D) is used to punish true threats, as the State contends here, the statute does not
13 	run afoul of the First Amendment. See State v. Garcia, 2013-NMCA-005, ~~ 20-21,
14 294 P.3d 1256 (stating that conduct that constitutes a true threat "is outside the realm
15 	of First Amendment protection"); see also Virginia v. Black, 538 U.S. 343, 344
16 (2003) ("[T]he First Amendment permits a State to ban 	'true threats,' 	which
2The parties did not raise any argument under Article II, Section 7 of the New
Mexico Constitution, or argue that it provides greater protection than its federal
counterpart. See State v. Gomez, 1997-NMSC-006, ~~ 22-23, 122 N.M. 777, 932
P.2d 1 (discussing the interstitial approach to preserving a question under the New
Mexico Constitution).
11

1 encompass those statements where the speaker means to communicate a serious
2 expression of an intent to commit an act of unlawful violence to a particular
3 individual or group of individuals[.]" (citations omitted)).
4 {15} 	When a true threat is involved, the mens rea standard described above is what
5 distinguishes criminal school interference from assault, also a petty misdemeanor.
6 See NMSA 1978, § 30-3-l(B) (1963) (stating that "assault" consists of a "threat or
7 menacing conduct which causes another person to reasonably believe that he is in
8 danger of receiving an immediate battery"). Section 30-20-13(D) addresses the
9 effect threats are intended to have upon the educational process, rather than the effect
10 they have upon the person; as the State correctly observed, Section 30-20-13(D) "is
11 	designed to allow schools to teach and students to learn without interference." The
12 	State, having chosen to prosecute Child under Section 30-20-13(D) for school
13 	interference, must therefore prove that Child made a threat and that when making
14 the threat, Child intended to interfere with the educational process.
15 	II. 	Substantial Evidence
16 	{16} 	Having clarified the standard for a conviction, we tum to the evidence
17 presented at trial to determine whether Child's conviction is supported by sufficient
18 evidence. The district court made thorough and detailed findings at the conclusion
12

1 of trial and we begin by reviewing the district court's findings on the mens rea
2 element:
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Turning to the mens rea issue, the court finds that ... when you look at
the UJI that talks about intent and mens rea, we are able to discern intent
not merely from what is said or from testimony that would elicit what
did you mean [and] what did you want, but we are able to look at all of
the 	facts 	and 	circumstances 	in 	the 	case. 	And 	on 	the 	willfulness
circumstance, the court finds these factors . . . in our evidence today
sufficient to satisfy the burden beyond a reasonable doubt: Number one,
the way the conversation occurred between [J.E.] and [Child] on the
bus is such that there is this curious conversation going on about the
camera.... And 	when 	you 	examine 	the 	time 	progression 	of that
testimony, 	the 	conversation 	went 	to ... "Why 	do 	you 	have 	the
camera?" And our [Child] looks at the young man he just took a picture
of, and he says, "I'm making a kill list." And I think that supports a
willfulness standard in this case. Then, turning to the balance ofit, when
we get to school on Monday and we have a conversation about a "hit
list," the correction is made to a "kill list." And so I find that ... those
two circumstances demonstrate the willfulness and demonstrate the
elements of general intent necessary to support a finding that [Child]
committed the delinquent act of violating [Section] 30-20-13(D).
.,
22 (Emphasis added.) In finding that the willfulness element was satisfied, the district
23 	court focused on whether Child intended to make the statement-the general intent
24 	standard-rather than whether Child's intention in making the statement was to
25 	interfere with the educational process. The district court did not make any findings
26 regarding Child's specific intent to interfere with the educational process. Certainly,
27 the district court should not be faulted given the absence of any prior interpretation
28 	of Section 30-20-13(D) by a New Mexico appellate court. Nevertheless, given our
13

1 interpretation of Section 30-20-13(D), it appears that an incorrect legal standard was
2 applied to determine Child's guilt. See State v. Gonzales, 1999-NMCA-027,, 9, 126
3 N.M. 742,975 P.2d 355 ("It is a bedrock principle of appellate practice that appellate
4 courts do not decide the facts in a case. Fact-finding is the task of the trial judge or
5 the jury. Our role is to determine whether the lower court has applied the law
6 properly.").
7 	{t 7} 	"In a bench trial, the trial judge takes the place of the jury as the finder of
8 fact[,]" and "[i]n this respect, the situation in this appeal is similar to an appeal
9 predicated upon an error in an instruction of law given to a jury." State v. Meisel,
10 2011-0hio-6426, , 43 (holding that the trial court applied an incorrect legal standard
11 	to the elements of self-defense and reversing and remanding to the trial court to apply
12 the correct law to the facts). In circumstances where the jury is incorrectly instructed
13 	on an element at issue in the case, our Supreme Court has said that "the error could
14 be considered fundamental: The question of guilt would be so doubtful that it would
15 	'shock the conscience' of this Court to permit the conviction to stand." State v.
16 	Orosco, 1992-NMSC-00_6, , 	9, 113 N.M. 780, 833 P.2d 1146. Further, "'[i]f an
17 instruction is faciaily erroneous it presents an incurable problem and mandates
18 reversal.'" State v. Suazo, 2017-NMSC-Oll,, 26, 390 P.3d 674 (holding that the
19 jury instruction misstated the mens rea element of second-degree murder and was
14

1 therefore error requiring reversal (internal quotation marks and citation omitted)).
2 Because the record indicates that the district court applied an incorrect legal standard
3 to an essential 	element of this offense, we are compelled to reverse Child's
4 conviction. See, e.g., State v. 	Wiborg, 396 P.3d 258, 259-60 (Or. Ct. App. 2017)
5 (reversing and remanding for a new trial after the appellate court concluded that "the
6 trial court applied an incorrect legal standard with regard to [an] element .of the
7 offense and, thus, did not make a finding on an element necessary to convict.");
8 Commonwealth v. Scott, 176 A.3d 283, 292 (Pa. Super. Ct. 2017) ("The trial court
9 erred by applying an incorrect legal standard and finding [the defendant] guilty[.] ...
10 Accordingly, [the court] must vacate the judgment of sentence and remand for a new
11 	trial.").
12 	{18} 	Because 	we 	reverse, 	"we 	are 	required to 	determine 	whether 	sufficient
13 	evidence was presented to support [the] conviction[] to avoid double je<;>pardy
14 concerns should the [s]tate seek to retry [Child]." State v. Samora, 2016-NMSC-
15 	031, ,I 34, 387 P.3d 230; State v. Dowling, 2011-NMSC-016, ,I 18, 150 N.M. 110,
16 257 P.3d 930 ("Ifwe find that sufficient evidence was presented at trial to support a
17 conviction, then retrial is not barred."). "The test for sufficiency of the evidence is
18 whether substantial evidence of either a direct or circumstantial nature exists to
· 19 support a verdict of guilty beyond a reasonable doubt with respect to every element
15

I essential to a conviction." State v. Montoya, 2015-NMSC-010,, 52, 345 P.3d 1056
2 (internal quotation marks and citation omitted). Substantial evidence is defined as
3 "such relevant evidence as a reasonable mind might accept as adequate to support a
4 conclusion[.]" State v. Salgado, 1999-NMSC-008,, 25, 126 N.M. 691,974 P.2d 661
5 (internal 	quotation 	marks 	and 	citation 	omitted). 	Reviewing 	courts 	"view the
6 evidence in the light most favorable to the guilty verdict[.]" State v. Cunningham,
7 2000-NMSC-009, , 	26, 128 N.M. 711, 998 P.2d 176. As with our review when
8 defective jury instructions mandate reversal, we evaluate whether the evidence was
9 sufficient to sustain a conviction not under the instructions that should have been
IO 	given, but rather, under the erroneous jury instructions that were given. See Dowling,
11 	2011-NMSC-016,, 18.
12 {19} 	Applying the general intent standard pursuant to Dowling, we hold that
13 	sufficient evidence was presented at trial to support the conviction. See id. The
14 district court made detailed findings about Child's initial statement on the bus and
15 	his actions when questioned about it on Monday morning, concluding that "all of
16 those circumstances satisfy a concern that there might be a propensity to actually
17 engage in that conduct." The State presented testimony that Child, after being asked
18 why he had his camera at school and taking a picture of another student, said the
19 reason he had his camera was that he was making a kill list. After J.E. reported the
16

1 incident to the principal, Ms. Nesbitt, on Monday morning, she asked Child about it,
2 saying there was a report of a "hit list." He corrected her and said, "No, it's a 'kill
3 list.' "Ms. Nesbitt interpreted this to mean a list involving targets and that students
4 might be in jeopardy. Ms. Nesbitt further testified that she took the statement
5 seriously and felt she needed to call the police when Child corrected her from "hit
6 list" to "kill list" and because a student was afraid and felt threatened. Further, as set
7 forth above, the district court relied on Child's initial statement and his repetition
8 and 	clarification 	of 	those 	words 	on 	Monday 	morning, 	without 	condition,
9 explanation, or indication that he was not serious, to support a finding that Child
10 willfully made his "kill list" statements. We agree with this analysis under the
11 	general intent approach employed by the district court. Viewing the evidence in the
12 	light most favorable to the verdict, we conclude that sufficient evidence supported
13 	the conviction, and retrial is therefore permissible.
14 CONCLUSION
15 	{20} 	For the foregoing reasons, we reverse Child's conviction and remand for a
16 new trial consistent with this opinion.
17 {21} 	IT IS SO ORDERED.
18 	~'P~19 	MEGP. DUFFY,~
17

—

WE CONCUR:

9 We

J. MILES HANISEE, Judge

JACQUELINE R. MEDINA, Judge

18